Wednesday, June 20, 2012
Posted by D. Daniel Sokol
Emily F Clark (Ashurst) and Celia E Foss (Ashurst) describe When the Failing Firm Defence Fails.
ABSTRACT: The evolution and operation of the so-called ‘failing firm defence’ in EU merger control is described. The high evidential hurdle in establishing a failing firm defence is discussed. The scope for arguments based on the counterfactual principle, even if the specified criteria for a failing firm defence are not strictly satisfied, is considered.